Abortion rights activists rally outside of the U.S. Supreme Court. Photo by Robin Bravender, States Newsroom.
WASHINGTON — The liberal wing of the U.S. Supreme Court appeared highly skeptical of a Louisiana law that restricts abortion access as the justices heard oral arguments Wednesday in a high-stakes case that could open the door for additional abortion limitations around the country.
But the court’s conservative majority — which is likely to determine the outcome of the case — was less clear during oral arguments about how they’re likely to rule when the court issues its opinion later this year.
The case, June Medical Services LLC v. Russo, is over a Louisiana law that requires any physicians who perform abortions to have admitting privileges at a local hospital, which critics say would severely limit access to those services. Opponents of the law warn that it would leave only one physician providing abortions in the entire state.
A ruling that allows the Louisiana law to stand could potentially allow other states to impose stricter abortion regulations.
The court’s four liberal justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — all questioned the need for Louisiana’s requirement that doctors who perform abortions have admitting privileges at a hospital within 30 miles of where the abortion is performed.
“What sense does the 30-mile limit make?” Ginsburg asked Elizabeth Murrill, Louisiana’s solicitor general who defended the state’s law.
Murrill said the limit is “consistent with our regulatory structure” and that there was evidence of women who did require transfers to hospitals after abortion procedures.
Sotomayor also questioned the need for the 30-mile limit, arguing that, if doctors are credentialed somewhere outside those bounds, “they have the skill level.”
Kagan said that an abortion provider in Louisiana that served over 3,000 patients annually for 23 years had only ever transferred four patients to a hospital. The justices suggested that most women experience no complications after abortions and that those that did would likely seek medical care later from their homes. Ginsburg called first-trimester abortions among the safest medical procedures, “far safer than childbirth.”
Given that Louisiana’s former law required abortion providers to have admitting privileges or a written transfer agreement with a hospital, “it’s a little hard to see how this improves anything,” Breyer said.
He stressed that the justices weren’t likely to settle the complex case during oral arguments. He also pointed to the contentious nature of the issues at stake.
In the country, “people have very strong feelings and a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong,” Breyer said.
The Supreme Court has tilted ideologically in recent years after President Donald Trump’s appointments of Justices Neil Gorsuch and Brett Kavanaugh. Kavanah replaced Justice Anthony Kennedy, who was often a swing vote and who sided with the court’s liberal wing in the Texas abortion case.
Abortion foes are hoping that Kavanaugh’s presence on the bench will push the court to uphold the Louisiana law and set a new standard for how far states can go in imposing abortion restrictions.
Last year, the Supreme Court voted 5-4 to temporarily block the Louisiana law from taking effect. Four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Kavanaugh — said they would have denied the request to stay the law.
Supreme Court Chief Justice John Roberts could represent the pivotal vote in the case. He joined the conservative wing in their 2016 dissent in the Texas case, arguing that the Texas law should have been upheld. Roberts joined the liberals, however, in the decision last year to block the law.
Julie Rikelman, the attorney representing opponents of Louisiana’s law, told the justices Wednesday that “this case is about respect for the court’s precedent,” urging the court to reject the law on the same grounds that it did in the Texas case.
Roberts asked Wednesday how the issues in Louisiana compare with the Texas case, Whole Woman’s Health v. Hellerstedt.
Kavanaugh questioned whether critics of the Louisiana law would argue that “admitting privileges laws are always unconstitutional,” or whether the facts should be considered state-by-state.
Two conservative justices, Gorsuch and Thomas, did not ask questions during the arguments.
Alito questioned whether abortion providers challenging the law have the legal “standing” to sue. He suggested that the providers may not be allowed to sue on behalf of their patients if their interests are at odds.
“You think that if the plaintiff actually has interests that are directly contrary to those of the — those individuals on whose behalf the plaintiff is claiming to sue, nevertheless that plaintiff can have standing?” Alito said.
Jeffrey Wall, a Justice Department attorney representing the Trump administration, argued that providers and patients can indeed have conflicting interests. “Their interests are not necessarily aligned,” Wall said. “One is the interest of for-profit providers and not being regulated in particular ways. The other is the interest of women in their own health and safety.”
The Trump administration is supporting Louisiana in the case.
The court is expected to issue an opinion before its term ends this summer.
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